R v Coleman; R v Chifuntwe
[2015] ACTSC 225
•22 May 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Coleman; R v Chifuntwe |
Citation: | [2015] ACTSC 225 |
Hearing Dates: | 1 April 2015; 2 April 2015; 22 May 2015 |
DecisionDate: | 22 May 2015 |
Before: | Penfold J |
Decision: | See [90] to [94] and [97] to [101] below. |
Category: | Sentence |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – offenders to be sentenced for multiple offences involving transferring money from bank accounts of burglary victims, re-birthing of high performance motor vehicle and motorbike – objective seriousness – premeditation and planning – whether seriousness of transfer of $17,000 out of victim’s bank account to be assessed by reference to amounts of money that might in general be removed from bank accounts – whether seriousness of transfer of $17,000 out of victim’s bank account to be assessed by reference to wealth of offenders – connection between illicit substance abuse and offending – whether sentences should be deferred – whether commitment to rehabilitation sufficient to justify deferral of sentence and consequent supervision by court – low non-parole periods set – recommendation for residential rehabilitation as a condition of parole – reparation orders made. |
Legislation Cited: | Crimes Act 1900 (ACT), s 114B, 114C Crimes (Sentencing) Act 2005 (ACT), ss 20, 67 Magistrates Court Act 1930 (ACT), s 90B |
Parties: | The Queen (Crown) Kalonga Chifuntwe (First Offender) Corey Coleman (Second Offender) |
Representation: | Counsel Mr G Mansfield (Crown) Ms T Warwick (First Offender) Mr J De Bruin (Second Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Capital Lawyers (First Offender) Legal Aid ACT (Second Offender) | |
File Numbers: | SCC 292 of 2014; SCC 293 of 2014; SCC 295 of 2014; SCC 297 of 2014 |
The offences
Kalonga Chifuntwe has pleaded guilty to 10 offences, being:
(a)one count each of attempting to receive stolen property and receiving stolen property, arising under s 313 of the Criminal Code 2002 (ACT) and, for the attempt, s 44 of the Criminal Code;
(b)seven counts of money laundering, arising under s 114B of the Crimes Act 1900 (ACT); and
(c)one count of possessing property the proceeds of crime, arising under s 114C of the Crimes Act.
All those offences carry maximum penalties including imprisonment for 10 years, except the possession offence for which the maximum term of imprisonment is two years.
The possession offence has been transferred from the Magistrates Court under s 90B of the Magistrates Court Act 1930 (ACT) because it is related to the offences I have already mentioned, although it would not normally be dealt with in the Supreme Court.
Corey Coleman has pleaded guilty to 14 offences, including:
(a)one count of forgery, under s 346 of the Criminal Code;
(b)one count of theft under s 308 of the Criminal Code;
(c)one count of riding a motor vehicle dishonestly and without consent under s 318(2) of the Criminal Code;
(d)one count of receiving stolen property under s 313 of the Criminal Code;
(e)one count of aiding and abetting receiving, arising under ss 45 and 313 of the Criminal Code;
(f)one count of obtaining property by deception, arising under s 326 of the Criminal Code;
(g)five counts of money laundering under s 114B of the Crimes Act; and
(h)one count of attempting to pervert the course of justice, arising under ss 44 and 713 of the Criminal Code.
All those offences carry maximum penalties including 10 years imprisonment, except for the ride motor vehicle offence which carries a five-year maximum penalty, and the attempt to pervert the course of justice offence which carries a seven-year maximum term of imprisonment.
I am also to sentence Mr Coleman for two offences that have been transferred from the Magistrates Court, being one count each of unlawful possession of stolen property under s 324 of the Criminal Code, with a maximum penalty including six months imprisonment, and of one of dealing with property suspected of being the proceeds of crime under s 114C of the Crimes Act, with a maximum penalty including two years imprisonment.
Mr Chifuntwe’s offences were committed in the course of conduct that also involved Mr Coleman. The rest of Mr Coleman’s offences were committed in the course of three other separate series of events.
Circumstances of offences
Dealings with the bank account
It is convenient to deal with the incident involving both offenders first, although it was not the first in time.
First, on 19 April 2014 an attempt was made, with Mr Chifuntwe’s knowledge, to cause nearly $8,000 to be transferred to his bank account from the bank account of a man whose home had recently been burgled. That attempt was unsuccessful because the bank had checked with the account holder before completing the transfer.
Then, between 29 April and 2 May 2014, Mr Chifuntwe, aided and abetted by Mr Coleman, received into his bank account a total of $17,448.88 by way of several separate transfers, effected in a period of just over four hours, from the bank account of the wife of the man I have already mentioned whose house had been burgled. Although there is no direct evidence before me to that effect, the fact that the last of the four successful transfers was for an amount of money including 88 cents would allow the inference that the last transfer cleaned out the bank account.
Cash was then withdrawn from Mr Chifuntwe’s bank account, and the two men also visited various retail outlets where goods were obtained using the MasterCard attached to Mr Chifuntwe’s account. Some of those goods were later returned and exchanged for other goods. The money laundering charges relate to those cash withdrawals and retail transactions.
It seems that access to the victim’s bank accounts was achieved using information obtained during the burglary. In the later case, even when the bank’s security arrangements were triggered and the female victim’s account was suspended, a person who is presumably an associate of the offenders telephoned the bank with sufficient information to answer a series of identification questions that persuaded the bank to reactivate the account within a few hours.
The Holden re-birthing offences
Mr Coleman’s first series of offences involved the “re-birthing” of a high performance vehicle, and gave rise to charges of forgery and theft.
Between January and March 2014, Mr Coleman obtained paperwork relating to a 2012 HSV GTS worth about $70,000. He forged a receipt for the purchase of the vehicle, and on 28 March 2014 caused the registration of the vehicle to be transferred to an associate.
Shortly after this, overnight between 29 and 30 March, the vehicle was stolen from the owner’s driveway.
Over the next couple of weeks, parts from the HSV GTS, including the bonnet, front bumper, headlight assemblies, front and rear seats, door trims, stereo, gauges on dash above the stereo, wheels, boot lid, rear bumper and rear light assemblies, were fitted to a Holden VE SS Commodore, giving the vehicle the overall appearance of an HSV GTS. However, the vehicle identification number of that vehicle identified it as a VE SS Commodore. CCTV footage from a storage unit rented by Mr Coleman showed the appearance of the Commodore changing significantly over several visits to the unit between 4 and 14 April 2014.
On 23 April 2014, a burnt out vehicle was found in the Brindabella Ranges. The burnt out vehicle, although too severely damaged to be identifiable, carried the vehicle identification number of the HSV GTS that had originally been stolen.
The motorbike re-birthing offences
Mr Coleman’s second series of offences also involved re-birthing, this time of a motorbike. It gave rise to charges of dishonestly riding a motor vehicle without consent and receiving stolen goods.
The owner of a red and black 2005 Yamaha R1 motorbike had advertised it for sale. On 25 April 2014 he had several conversations with a person identifying himself as Chevy and using a mobile phone number that was also associated with other offences that I am dealing with today. The owner gave Chevy his residential address in Ngunnawal, and told him that he would be interstate on 26 April.
Overnight between 26 and 27 April 2014, the motorbike, along with a motorbike helmet, was stolen from the owner’s garage.
A number of parts from the stolen motorbike were stripped and used to replace parts on Mr Coleman’s similar, but originally white, motorbike.
About a month later, on 28 May 2014, the stripped red and black motorbike was located at Mr Coleman’s girlfriend’s home, and Mr Coleman’s motorbike, now red and black, was recovered from his mother’s home.
I note that although the phone I have already mentioned was used to deal with the owner of the red and black motorbike, Mr Coleman has not been charged with the theft of that motorbike.
Attempt to pervert the course of justice
Finally, there is the attempt to pervert the course of justice. On 28 May 2014 Mr Coleman’s girlfriend, Ms Emma Lee Allen, took part in a recorded conversation with police. On 16 June 2014 she initiated another conversation with police in which she provided a statement contradicting her previous information and providing false information that exculpated Mr Coleman by inculpating a co-offender. On 18 August 2014, after Mr Coleman had been taken into custody, Ms Allen initiated another interview and told police that Mr Coleman had told her to give a false statement on 16 June 2014 and that she had said what he had told her to say.
Reparation
Three claims for reparation have been made:
(a)There is one claim made on behalf of Westpac against each offender in the amount of $3,493.96 for each, being half each of the total amount that was transferred into Mr Chifuntwe’s bank account but remains unrecovered.
(b)There is also a claim made against Mr Coleman on behalf of the owner of the stolen HSV for $650, which appears to have been the excess payable on his insurance.
Pre-sentence custody
Both offenders have been in and out of remand custody since first coming to police attention in relation to these offences.
Mr Chifuntwe has spent one day in custody solely in relation to these offences and 61 days in custody in relation to these and other offences for which he was sentenced in August 2014 to that time served, and he has been continuously in custody since 13 October 2014 in relation to these offences, as well as other offences which are still proceeding through the Magistrates Court.
Counsel for Mr Chifuntwe said that the offences for which he was sentenced in August 2014 were minor offences committed when he saw police in the street and ran away; in the course of his flight he ran through three yards, constituting three offences of trespass, and damaged a fence. Having regard to the nature of these offences, and to the fact that Mr Chifuntwe was remanded in custody in relation to the current offences during the same period that was taken into account by the sentencing Magistrate, I shall give Mr Chifuntwe credit for 50 of those 61 days in custody, as well as the other days already mentioned, which gives a backdating date of 23 August 2014.
Mr Coleman had been granted bail on 21 April 2014 and was thus on conditional liberty when the second, third and fourth series of offences were committed. He has been in custody in relation to some or all of these offences for nine days in May 2014 and continuously since 23 July 2014, giving a backdating date of 14 July 2014.
Pleas of guilty
Mr Chifuntwe was first charged on 29 May 2014. After entering guilty pleas that were later withdrawn and after replacement, amendment or withdrawal of various charges, Mr Chifuntwe pleaded guilty on 11 December 2014 to the current charges.
Mr Coleman initially pleaded not guilty in August 2014, but on 11 December 2014 he also pleaded guilty to the current offences after amendment or withdrawal of some of the original charges.
I shall treat these all as early pleas of guilty, entitling the offenders to sentencing discounts of at least 25%.
Evidence
As well as the agreed statements of facts there is other material in evidence before me.
In relation to Mr Chifuntwe the Crown tendered:
(a)his criminal history;
(b)a pre-sentence report dated 25 March 2015; and
(c)a CADAS report dated 26 March 2015.
The defence tendered:
(a)a letter written by Mr Chifuntwe to the Court; and
(b)a letter from Karralika saying that Mr Chifuntwe had been found to be suitable for admission and that a bed was available for him on 7 April 2015.
Counsel for Mr Chifuntwe also provided a helpful chronology.
In relation to Mr Coleman the Crown tendered:
(a)a criminal history;
(b)two pre-sentence reports dated, respectively, 20 March and 30 April this year;
(c)a CADAS report dated 26 March 2015; and
(d)a photograph of the forged receipt for the HSV.
Mr Coleman also wrote a letter to the Court and provided a supportive letter from his maternal grandmother.
As well, oral evidence was given by both offenders. I shall refer to that at relevant points.
Objective seriousness
In considering the objective seriousness of these offences I have had regard to the following matters.
First, these are all serious offences from the community’s perspective. The scope for the security of bank accounts to be breached is likely to disturb all members of the community, as is the behaviour involved in Mr Coleman’s re-birthing offences. The general interest in a functioning community and a reliable justice system is significantly threatened by attempts to deter witnesses from telling the truth to police and in the criminal courts.
Secondly, all the offences were premeditated and in several cases also carefully planned.
For instance, although it seems that Mr Chifuntwe had for some time had the bank account into which the victim’s money was initially transferred, he opened a prepaid MasterCard account immediately before the successful transfers of money to his bank account, and that MasterCard was subsequently used to access that money.
Mr Coleman forged the receipt used to transfer registration of the HSV, which had not at that stage even been stolen.
The prosecutor submitted that premeditation was also suggested by the fact that the documents enabling the HSV to be re-registered had been taken from the owner’s home possibly some months before in an undiscovered burglary, but conceded that Mr Coleman could not be linked directly to any such burglary.
The re-birthing of the motorbike also seems to have involved some planning, but the evidence before me does not link Mr Coleman directly to the relevant events before he began using parts of the stolen motorbike to upgrade the bike he was using and hoped to own in due course.
I accept the prosecutor’s submission that the forgery was to some extent aggravated by the fact that it was aimed at deceiving the New South Wales authority responsible for registering ownership of vehicles on a register widely relied on to establish such ownership.
All Mr Coleman’s offences, except the first two relating to the re-birthing of the HSV, were aggravated by the fact that he was on conditional liberty when those later offences were committed.
Neither Mr Chifuntwe nor Mr Coleman expressed anything identifiable as remorse to the pre-sentence report author concerned. In each case the pre-sentence report author (who was not the same person for the two offenders) commented to the effect that the offender, in discussing his offences, sought to minimise his guilt rather than to accept full responsibility for his actions. Each of the offenders, in speaking to police, sought to shift responsibility onto his co-offender.
In oral evidence, however, Mr Chifuntwe said that he felt crushed about the inconvenience and disruption he had caused to the victims of his offences and that he was willing to try to repay the money he had taken.
Mr Coleman in his letter to the Court said he took full responsibility for his crimes, and that he was sincerely sorry to all his victims. He said in court that he felt awful that he put other people out just to benefit himself, but at the time he needed the money to fund his drug use. He said that he was really sorry and remorseful, and needed help. In cross-examination he said that he would like to repay the victims for “the stuff that was taken”.
I also note in relation to Mr Chifuntwe that his involvement in the attempted transfer of money into his bank account was identified by his counsel as having made available his bank account knowing that an attempt would be made to transfer money into it unlawfully. Counsel says that this and the successful transfer of $17,000, of which over $10,000 was recovered, were low-range offences having regard to the amount of money that can be stolen generally (rather than just in this case). The prosecutor says that they involved amounts of money that were large by the offenders’ standards, and should therefore be treated as more serious.
The receipt of goods to the value of $17,000 stolen from a person’s home would not generally be regarded as at the bottom of the range, and I cannot see why the receipt of that amount of money stolen from a bank account should be treated more leniently. On the other hand I am not convinced by the corollary of the prosecutor’s submission, which seems to be that richer people need to engage in larger thefts before their offences are treated as serious.
The seven money laundering offences relate to various dealings with the remaining roughly $7,000 that was removed from the victim’s bank account and not recovered. Counsel for Mr Chifuntwe says that these are low-range offences, although she conceded that the offences were committed in a period of just over a month and couldn’t be said to be unplanned or impulsive. On the other hand, she pointed out that Mr Chifuntwe had made no attempt to cover his tracks, in that he used the MasterCard in his own name and linked to his mobile phone number and email address. The prosecutor says the bank transfer offences were of medium range seriousness.
I consider that all Mr Chifuntwe’s offences are somewhat below mid-range seriousness and that the money laundering offences, each of which involved a relatively small amount of money, are relatively low-range offences.
As for Mr Coleman, as I understand it, his counsel suggested that his offences were committed in the context of the operations of a more sophisticated criminal network of some sort, about which Mr Coleman could not afford to be more forthcoming, although when pressed, counsel seemed to be suggesting only that Mr Coleman’s actions took place in the context of the need to fund his drug use. However, in oral evidence, although emphasising that his re-birthed vehicles were worth money, Mr Coleman resisted any suggestion that he intended to realise their value in connection with his drug use.
Counsel also submitted that the offending was not particularly sophisticated, given that it did not take the law long to catch up with Mr Coleman.
For the offences committed by Mr Coleman with Mr Chifuntwe, I shall take the same view of their objective seriousness. The Holden re-birthing incident seems to me, having regard to its relative sophistication and its level of planning, to be at the mid-range of seriousness, while the motorcycle incident is somewhat less serious than that.
The prosecutor submitted that Mr Coleman’s attempt to pervert the course of justice was of low-range seriousness. There is no suggestion in the material before me that Mr Coleman’s efforts to get his girlfriend to give exculpatory information to the police involved any specific threat to her, but she did tell police that she felt pressured and scared and did not make the exculpatory statement of her own free will.
I am satisfied that the two offenders were equally culpable in relation to the offences they committed together. Among other things, the evidence is that both offenders were involved in dealing with the proceeds of the thefts from the victim’s bank accounts, despite the fact that the prepaid card was obtained in Mr Chifuntwe’s name.
Offenders’ subjective circumstances
I have also had regard in this sentencing to the subjective circumstances of the offenders.
Mr Chifuntwe is now 24. His criminal history in the ACT includes several relatively minor offences such as drug possession and traffic offences. In May 2011 he was sentenced in the Supreme Court for his involvement in an aggravated robbery in which a weapon was used, and was later sentenced in the Magistrates Court for a culpable driving offence that caused grievous bodily harm to a passenger. In the end, he served a total of 31 months in prison ending in the second half of 2013.
He has previously responded poorly to Corrective Services supervision, and his previous and current periods in custody have been marked by disciplinary breaches, including one for failing to supply a urine sample for drug testing. I am told that Mr Chifuntwe served the full term of the earlier sentences after having been refused parole on his first application.
Mr Chifuntwe’s background is conveniently summarised in the pre-sentence report, which says:
Born in Zambia, Mr Chifuntwe moved with his family to the ACT when aged two years, returning occasionally to Zambia for holidays. He reported he was raised in a stable and supportive environment and that his formative years were predominantly without incident. He reported that he initially struggled to integrate at school, however, this changed by the time he reached high school.
Mr Chifuntwe stated he still has familial support, this was confirmed by his mother, who added that her son could reside in the family home when next in the community.
Mr Chifuntwe reported a poor employment history, with his longest period of employment lasting five months. In relation to education, he stated he completed Year 10 before being asked to leave school partway through Year 11.
I note that Mr Chifuntwe has at some point considered trying to finish his Year 12 certificate but has refrained from doing anything about that during his present period in custody.
Mr Chifuntwe reported that while in high school, he began to associate with a negative peer group which led to the adverse attention of police. He added he has continued to align himself with antisocial peers since, including during his most recent period in the community. The offender has stated his intention of severing contact with these antisocial peers when released from custody.
After his release from prison Mr Chifuntwe lived with his parents and worked briefly, but in January 2014 he broke up with a long-time girlfriend and began using drugs again, mainly methamphetamine. He also met up with Mr Coleman, whom he had known since they were at school. After being arrested in mid-2014, he said, he realised he had a drug problem and applied to go to Karralika, but when he was released after eight weeks (without a residential rehabilitation condition) he did not go into rehabilitation but instead began using drugs again. In oral evidence, Mr Chifuntwe admitted that he had initially seen Karralika as a “get out of gaol free” card, but now accepted that drugs were ruining his life and he needed to get off them.
Mr Coleman is still only 21. His ACT criminal history shows some earlier offending ... mainly involving traffic offences but also including three burglaries (one of them an aggravated burglary) and one theft. In New South Wales, ... Mr Coleman has been convicted only of three traffic offences and one assault occasioning actual bodily harm.
Mr Coleman provided little background information to the pre-sentence report author, but his mother reported that when not affected by drug abuse he has a close relationship with her, his step-father and his younger brothers. She reported that Mr Coleman has played football since childhood, and in 2013 he played country league football for a regional team, where he was well-regarded for his ability and contributions to the club.
The pre-sentence report also referred to an ACT Health report dated 18 February 2014, noting an earlier diagnosis of personality disorder, and a September 2014 psychiatric review of this diagnosis which found “no evidence of psychopathology”. I understand that psychopathology is the study of mental disorders, and it may be that the reference was intended to refer to psychopathy, a form of personality disorder. There was other vague and inconsistent information volunteered by Mr Coleman about his mental health, but no submissions were made that this should be an issue in his sentencing.
Although Mr Coleman was not forthcoming to the pre-sentence report author, he gave quite a detailed history to the CADAS reporter, as follows:
Mr Coleman reported that he was born in Adelaide, South Australia. He moved with his family to the ACT at the age of three. Prior to being remanded he was homeless, living in his car for six to seven months. His highest level of education was completing Year 8 of secondary school. He subsequently left school and worked a number of jobs, including landscaping, building houses, building trusses, and was last employed as a glass cutter in late 2013. He is single with no dependants.
Mr Coleman is the eldest of five children. He has one younger sister and three younger half-brothers.
Mr Coleman said that he did not have a normal childhood. He explained that his birth-father used to “smoke drugs”. His parents got divorced when he was seven years old. His mother re-married a man he described as an alcoholic. His mother then separated from his stepfather and married another man, who he described as a reformed alcoholic. Mr Coleman stated his mother had no history of alcohol or drug use. Mr Coleman has had no contact with his birth-father for two years. He maintains a close relationship with his mother.
Mr Coleman said that his home life as a child was “hectic”. He ... experienced both physical and verbal violence in the home.
Mr Coleman related an incident when he was aged 11. He said his step-father returned home intoxicated and placed bullets on the dinner table where the rest of the family were seated. His step-father then said to his mother, “this is for you and these are for the kids”, referring to the bullets. Mr Coleman stated that he took his siblings next door and asked them to call the police.
...
Mr Coleman said that at age 14 he was “kicked out” of home following a family argument. He stated that this was very traumatic for him at the time. He said that he became homeless as a result. He survived by buying a car from a friend, which he lived in for a period. He stated that he worked at this time so he could live independently. He said he has never accessed a youth refuge as he was not aware of these services.
Mr Coleman gave similar information in his oral evidence. He described spending time with his biological father in Young where he played football, boxed and helped out at the Police Citizens Youth Club, and then returned to Canberra in the hope of finding an apprenticeship. In Canberra he lived with his mother and the rest of the family, found work and formed a new relationship, but didn’t manage to organise an apprenticeship. Around the end of 2013 the relationship ended, and not long afterwards he was kicked out of his mother’s home because he was again using drugs. His drug use increased. He began smoking Ice and found himself in debt to dealers, which led him into offending again. He said that he had managed to gain entry to the Therapeutic Community program in the AMC despite not being a sentenced prisoner, but continued to use after being excluded from the Therapeutic Community for possession of a syringe. Mr Coleman said that he continues to use drugs because he doesn’t know how to stop.
The CADAS report referred to Mr Coleman having insight into his condition. It also suggested that he had benefited from his time in the Therapeutic Community, while noting that in the AMC he has taken to injecting drugs. Mr Coleman said, however, that this is his first time in prison and he doesn’t want to go back. Mr Coleman’s grandmother wrote a letter referring to his difficult and disrupted childhood and describing his recognition that things need to change in his life.
Both offenders claimed that their offending was explained by their drug abuse.
Mr Chifuntwe reported using alcohol and cannabis from the age of 15, using various other drugs on a few occasions or for short periods, and having used significant quantities of methamphetamine in 2013 and the first half of 2014 until he was taken into custody in connection with the current offences.
He explained the connection between drug use and this offending by saying that his offending happened because while he was using regularly, he was reckless in his decisions and choices; however he conceded that they were his decisions and his choices.
Mr Coleman reported alcohol and illicit drug abuse since he was around 13, with a brief period of abstinence during a 2013 relationship with a young woman who was not a substance abuser. He claimed fairly heavy use of Ice in the seven months before his arrest in respect of these matters. Mr Coleman claimed that during this period his health deteriorated and he started “doing jobs.”
Mr Coleman’s explanation of the connection between his offending and his drug use was unclear. He seemed to be suggesting that the re-birthed Holden and the re-birthed motorbike could have been sold to pay drug debts if necessary, but seemed also to concede that the real connection was only that he had committed the relevant offences while he was addicted to drugs, and that he was specifically interested in “hot” cars and bikes.
Pressed about the circumstances in which he had acquired the vehicles and his reasons for doing so, Mr Coleman became evasive, eventually agreeing that the forgery and theft involving the HSV were about getting the vehicle, but repeated that getting the vehicle was about money.
Rehabilitation
Both offenders claim a wish to rehabilitate themselves by breaking their drug habits. While I have indicated some scepticism about the directness of the link, in this case, between drug use and this offending, there is no doubt that drug rehabilitation is fundamental to both offenders if they are to avoid re-offending.
Mr Chifuntwe has failed to complete several short course substance abuse programs, although I note that a stay at the Koolamon Restoration Program ended after several weeks because the program was closed down. He completed a four-month residential rehabilitation program while in custody in 2012, but received only a statement of attainment due to testing positive for drug use during the program. He has been assessed as suitable for Karralika and is on the waiting list for a bed.
Counsel for Mr Chifuntwe said that over the last few months he has had an opportunity to think about his future and has recognised that his options are to pursue rehabilitation seriously or spend his life in and out of prison. Furthermore, counsel said, Mr Chifuntwe has concluded that he needs at least 12 months residential rehabilitation in a program such as is offered by Karralika.
Mr Coleman began the Therapeutic Community Rehabilitation program in the AMC in November last year but was excluded in February this year, for drug-related matters. His behaviour while on remand has been generally unsatisfactory; the pre-sentence report records disciplinary action in relation to 10 incidents since 16 August 2014, most relating to drug use or suspected drug use, the most recent incident being on 23 March this year. Mr Coleman was in March this year assessed by Triple Care Farm as suitable for residential rehabilitation.
Other matters
These offences, because of the premeditation involved and especially because of the threats that all of those offences pose to the ability of members of the community to feel secure in their day to day lives, make general deterrence a particular relevant consideration in this sentencing. Personal deterrence is also clearly necessary for both offenders.
Should sentencing be deferred?
Both offenders seek deferred sentence orders, under which they would be released to attend rehabilitation programs and not finally sentenced until they have had a chance to demonstrate their commitment to rehabilitation.
In support of this proposition, Mr Chifuntwe’s counsel pointed to the fact that he is only 24 and has been in custody for a substantial part of the time since he turned 18, and that he has realised that he needs long term residential rehabilitation if he is to change his life.
Mr Coleman’s counsel submitted that in relation to young offenders, rehabilitation may be more important than general deterrence (a proposition which I accept), that Mr Coleman has a serious drug addiction (a proposition that is somewhat more problematic), and that his drug difficulties may be attributable to his somewhat traumatic childhood. I note, however, that so far there appears to have been no attempt by Mr Coleman to seek help in coming to terms with those childhood experiences.
For several reasons I have decided not to defer the sentencing of either offender.
One reason is that, for each offender, it would be difficult to frame a useful set of alternative sentences to reflect compliance and non-compliance with the conditions of the deferred sentence order. The total sentence I am contemplating for Mr Chifuntwe would not allow for the crafting of a sufficient threat to induce compliance, and that required for Mr Coleman would not allow crafting of an adequate sentence that would still permit a sufficient prospective reduction in sentence to induce compliance.
However, the main reason for rejecting the deferred sentence option is that I am not convinced that the commitment of either offender to serious drug rehabilitation is sufficiently strong (however genuine it might be at this very moment) to justify that rehabilitation being, in effect, supervised by this court. The alternative, having regard to the period that each offender has already spent in custody, and to the importance of rehabilitation for offenders who are still relatively young, is to set a significantly low non-parole period for each offender, and to recommend that the parole period should involve participation in a long-term residential rehabilitation program, and that is what I propose to do.
Sentence
Mr Chifuntwe, please stand. I record convictions on one count each of attempting to receive stolen property and receiving stolen property, seven counts of money laundering, and one count of possessing property the proceeds of crime.
Under s 20 of the Crimes (Sentencing) Act 2005 (ACT) I order that you pay the sum of $3,493.96 to Westpac, by monthly instalments of $100 per month, the first instalment to be paid two months after you are next released from custody; your lawyer will explain to you that those payments are to be made into the court, not directly to Westpac Bank.
I now sentence you to imprisonment for a total period of 26 months, as follows:
(a)for CC14/8802, I impose a sentence of imprisonment of 13 months, commencing from 23 August 2014 and reduced for your plea of guilty from 18 months;
(b)for CC14/8799, I impose a sentence of imprisonment of 18 months reduced from 24 months, and commencing from 23 September 2014;
(c)for CC14/8803, I impose a sentence of imprisonment of four months reduced from six months, commencing from 23 December 2015;
(d)for CC14/8804, I impose a sentence of imprisonment of four months reduced from six months, and commencing on 23 December 2015;
(e)for CC14/8805, I impose a sentence of imprisonment of six months reduced from nine months, commencing from 23 December 2015;
(f)for CC14/8796, I impose a sentence of imprisonment of four months reduced from six months, commencing on 23 March 2016;
(g)for CC14/8808, I impose a sentence of imprisonment of four months reduced from six months, commencing on 23 April 2016;
(h)for CC14/8809, I impose a sentence of imprisonment of four months reduced from six months, commencing from 23 May 2016;
(i)for CC14/8810, I impose a sentence of imprisonment of four months reduced from six months, and commencing from 23 June 2016; and
(j)for CC14/8807, I impose a sentence of imprisonment of one month reduced from two months, commencing from 23 September 2016.
As you will have picked up, that sentence has been backdated to 23 August 2014 to take account of pre-sentence custody as already indicated, and I set a non-parole period of 11 months to run from 23 August 2014 until 23 July 2015.
For the purpose of s 67 of the Crimes (Sentencing) Act, I recommend that it should be a condition of any parole you are granted that you undertake a significant period of residential rehabilitation.
The effect of the backdating and the non-parole period is that you will be eligible for parole in just over two months, namely 23 July this year, so you will probably want to begin the application process immediately. If you are released at that point, you will have 15 months in which to undertake serious residential rehabilitation during your period of parole supervision. You should keep firmly in mind, Mr Chifuntwe, that any breach of your parole conditions could see you serving some or all of the rest of that sentence back in custody, and that could be as much as the whole 15 months that will be outstanding if you are granted parole immediately at the end of your non-parole period.
You may sit down.
Mr Coleman, please stand. I record convictions on one count each of forgery, theft, riding a motor vehicle dishonestly and without consent, receiving stolen property, aiding and abetting receiving, obtaining property by deception, and attempting to pervert the course of justice, and five counts of money laundering.
Under s 20 of the Crimes (Sentencing) Act, I order that you pay:
(a)$6,250 to Morgan Kenny, the owner of the stolen motorbike, by monthly instalments of $100, the first to be paid six months after you are next released from custody;
(b)$650 to Wayne Garland, the owner of the stolen HSV, by monthly instalments of $100, the first to be paid five years after you are next released from custody; and
(c)$3,493.96 to Westpac Bank by monthly instalments of $100, the first of those instalments to be paid five years after you are next released from custody.
As I said to Mr Chifuntwe, those payments are to be made into court, not directly to either complainant.
I now sentence you to imprisonment for a total of three years and eight months as follows:
(a)for CC14/11944, I impose a sentence of imprisonment of 15 months, reduced from 20 months for your plea of guilty, commencing from 14 July 2014;
(b)for CC14/5131, I impose a sentence of imprisonment of 18 months reduced from 24 months, and commencing from 14 October 2014;
(c)for CC14/11942, I impose a sentence of imprisonment of nine months reduced from 12 months, and commencing from 14 October 2015;
(d)for CC14/11943, I impose a sentence of imprisonment of 15 months reduced from 20 months, and also commencing from 14 October 2015;
(e)for CC14/9635, I impose a sentence of imprisonment of 16 months imprisonment reduced from 22 months, and commencing from 14 February 2016;
(f)for CC14/6870, I impose a sentence of imprisonment of four months reduced from six months, commencing from 14 March 2017;
(g)for CC14/9640, I impose a sentence of imprisonment of six months reduced from nine months, and commencing on 14 March 2017;
(h)for CC14/9643, I impose a sentence of imprisonment of four months reduced from six months, commencing from 14 May 2017;
(i)for CC14/9644, I impose a sentence of imprisonment of four months reduced from six months, and commencing on 14 May 2017;
(j)for CC14/9645, I impose a sentence of imprisonment of four months reduced from six months, and commencing from 14 June 2017;
(k)for CC14/9646, I impose a sentence of imprisonment of four months reduced from six months, and commencing on 14 June 2017;
(l)for CC14/9648, I impose a sentence of imprisonment of two months reduced from three months, and commencing on 14 August 2017;
(m)for CC14/6871, I impose a sentence of imprisonment of one month reduced from two months, and commencing on 14 September 2017; and
(n)for CC14/9650, I impose a sentence of imprisonment of 15 months reduced from 20 months, commencing from 14 December 2016.
For you, the sentence has been backdated to 14 July 2014 to take account of pre-sentence custody, and I set a non-parole period of 15 months starting on 14 July 2014 and ending on 13 October 2015. That’s a very short non-parole period for a sentence of this length, and I record that it has been set like that in recognition of your youth and your expressed wish to undertake serious residential rehabilitation. For the purposes of s 67 of the Crimes (Sentencing) Act, I recommend that it should be a condition of any parole you are granted that you undertake a significant period of residential rehabilitation.
The effect of that backdating and the non-parole period is that you will be eligible for parole, at the earliest, in about four and a half months, namely 13 October this year, and I suggest, Mr Coleman, that you need to think hard about what you need to do in the next few months to convince the parole authorities that you are ready to leave prison and begin serious rehabilitation.
You also need to keep firmly in mind, Mr Coleman, that any breach of your parole conditions could see you serving some or all of the rest of your sentence back in custody, and for you that could be another nearly two and a half years in prison. I hope you and Mr Chifuntwe can make the most of the rehabilitation opportunities that should be available to you shortly, and avoid spending any more of that time in custody.
You may sit down.
| I certify that the preceding one hundred and four [104] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Penfold. Associate: Kate Harris Date: 11 August 2015 |
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